Rivkin quoted in Newsweek

Two conservative federal judges have now voiced cautiously sympathetic views on legal challenges to the 2,400-page health-care law that President Obama signed into law in March. But such preliminary skirmishes shed little light on whether the Supreme Court will in the end strike down the law, a law that raises a completely novel legal issue: can Congress require millions of individuals to buy a commercial product (in this case health insurance) in the name of regulating interstate commerce.

Judge Roger Vinson of the federal district court in Pensacola, Fla., suggested during a two-hour hearing on Sept. 14 that he was unlikely to dismiss a major challenge to the law by officials of 20 states, almost all of them Republican, plus three other plaintiffs. The plaintiffs object to provisions including the new law’s “individual mandate,” an unprecedented requirement that people not covered by employer-based plans must buy comprehensive health insurance or face monetary penalties. It is to take effect in 2011. The lawsuits—more than 15 so far—argue that Congress has no such power. Last month, federal district Judge Henry Hudson, of Richmond, Va., rejected a Justice Department motion to dismiss a similar suit by Virginia’s attorney general. But some leading legal experts, especially defenders of the new law, confidently predict that if any federal appeals court strikes it down, the Supreme Court will step in to uphold it, with some predicting a margin as lopsided as 8 to 1.

Critics of the law’s constitutionality scoff at such predictions. They’re confident that they’ll get at least the four conservative justices’ votes and that they have a good shot at swing-voting Justice Anthony Kennedy. Nobody seems to doubt that the four more liberal justices will support the new law. They appear to see Congress’s power to regulate interstate commerce as virtually unlimited, except by the Bill of Rights and other specific constitutional amendments.

However the case turns out, any ruling by the justices on the constitutionality of the health-care law would be the most important pronouncement on the relative powers of the federal and state governments in many decades.

The most fundamental question is whether Congress’s undoubtedly broad power to regulate activities affecting interstate commerce is so sweeping as to empower the government to require people who are engaged in no relevant activity at all other than living in the United States to buy health insurance. (When the Justice Department lawyer defending the new law sought to characterize a decision not to buy health insurance as commercial “activity,” Judge Vinson interjected, “You’re trying to turn the word upside down and say activity is really equivalent to inactivity.”)

The lawsuits also challenge as an invasion of state sovereignty the new law’s provisions requiring states, already strapped for cash, to spend billions of dollars expanding their Medicaid programs unless they withdraw entirely, a step widely seen as unthinkable.

Defenders of the law predict that no more than one or two of the most conservative justices would strike down the challenged provisions, which the government says are critical to effective federal regulation of a health care system that has a massive impact on interstate commerce. Walter Dellinger, a leading scholar and the acting solicitor general under President Clinton, foresees an 8-1 vote, with only arch-conservative Justice Clarence Thomas voting to strike down the new law. Tom Goldstein, another leading Supreme Court litigator, foresees a vote of at least 7-2.